Ohio NORML: Issue 3 Could Pinch Marijuana Users’ Fourth Amendment Rights

As election day looms, medicinal and recreational marijuana users in Ohio are mulling cloudy questions around how ResponsibleOhio’s legalization amendment could affect their lifestyle.

Oct 21, 2015 at 9:42 am

As election day looms, medicinal and recreational marijuana users in Ohio are mulling cloudy questions around how ResponsibleOhio’s legalization amendment could affect their lifestyle.

While voting to legalize marijuana seems like a smoker’s dream, some tried-and-true Ohio marijuana activists three decades into that fight are concerned about what the future holds if the proposed constitutional amendment passes.The Ohio chapter of the National Organization for the Reform of Marijuana Laws (NORML) believes the amendment’s language is ambiguous and limited, and thus ripe for misinterpretation.The group is concerned that conservative state officials could use ambiguities in the amendment to crack down on the drug in new ways.

“If (Issue 3) passes, there is so much gray area in the amendment there is going to chaos, there are going to be arrests, and people are still going to be in trouble for a plant that is legal,” says Brandy Sheaffer, president of Ohio NORML. “The majority of rules and regulations will be left up to Kasich’s commission, and this is a major concern with our membership.”

If Issue 3 becomes law, Ohio Gov. John Kasich will appoint a seven-member Marijuana Control Commission. According to the amendment’s language, the commission will regulate both industrial and homegrown marijuana production. Kasich has called marijuana a “scourge in this country” and opposes to any form of legalization.

Issue 3 has to pass first. But victory is possible, as a Quinnipiac poll released Oct. 8 shows 90 percent of Ohio voters support legalization for medicinal use and 53 percent support recreational use. Scheaffer says the 400-plus Ohio NORML membership was asked to weigh in on Issue 3, and their greatest concern is one shared by most of the state’s users — the amendment essentially proposes a marijuana monopoly. A close second was something more personal: Will at-home growers be signing away their Fourth Amendment right protecting them from warrantless searches when they become state certified to grow indoors?  Home growers can have four flowering marijuana plants and possess or share up to eight ounces of marijuana if they hold a valid state license obtained for $50, according to language inserted into the amendment after legalization activists balked at ResponsibleOhio’s original proposal. The current amendment proposal still limits all commercial marijuana growth to 10 farms around the state owned by the group’s investors.

Scheaffer says the Kasich-appointed commission could rule that the state license will come with the condition that home growers be subjected to “inspections,” a stipulation activists say would be tantamount to waiving their Fourth Amendment rights.

The commission could also decide what marijuana strains will be used for medicinal purposes, and what they choose might not be suitable for some patients, she says. Kasich could also shut down the proposed post-traumatic stress disorder research facility recently proposed for Licking County, she says.

ResponsibleOhio ran a petition drive to put legalization on the Nov. 3 ballot and has ties to political consultancy firm The Strategy Network of Columbus, which helped bring casinos to the state in 2009. The group says Ohio NORML’s suspicions about the Fourth Amendment are absurd.

“The home grow license is no different than the driver’s license we get to drive or the concealed carry we get to carry firearms,” says ResponsibleOhio spokesperson Faith Oltman. “It would be ludicrous to suggest we are signing away our Fourth Amendment rights by obtaining driver’s licenses or concealed carry permits. The same is true for the home grow license under Issue 3.”

But critics say ResponsibleOhio has no affiliation with Gov. Kasich and can’t control how state officials might institute the amendment’s provisions.

Historically, there are many instances where both businesses and individual professionals, after acquiring a necessary state license, had in some cases unknowingly and unwilling relinquished their Fourth Amendment rights.

“Licensed businesses still have Fourth Amendment rights, (but) we are litigating several cases now where acquiring a license subjects you to an inspection that we argue to be unconstitutional,” says Maurice Thompson, executive director of The 1851 Center for Constitutional Law in Columbus, which seeks to advance liberty and limit government and is named after Ohio’s constitutional convention of 1851.

But not everyone is convinced Issue 3 will lead to an erosion of constitutional rights.

Russ Belville, prominent radio personality for 420radio.org and writer for Marijuana Politics , an online marijuana news source, is adamant the paranoia is not warranted, citing experience in states that have legalized the drug.“I heard these same arguments,” he recently wrote on Marijuana Politics . “If you’re caught with non-store weed you’ll get busted! Never happened. The state will now have marijuana enforcement officers to go after people growing at home to protect their store revenue! Never happened. In fact, every scare about how awful (marijuana legalization) would be turned out to be utter bullshit.” ©